[109th Congress Public Law 366]
[From the U.S. Government Printing Office]
[DOCID: f:publ366.109]
[[Page 2599]]
MILITARY COMMISSIONS ACT OF 2006
[[Page 120 STAT. 2600]]
Public Law 109-366
109th Congress
An Act
To authorize trial by military commission for violations of the law of
war, and for other purposes. <<NOTE: Oct. 17, 2006 - [S. 3930]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Military
Commissions Act of 2006.>>
SECTION 1. <<NOTE: 10 USC 948a note.>> SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Military
Commissions Act of 2006''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military
commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to
protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status
Review Tribunals of propriety of detention.
SEC. 2. <<NOTE: 10 USC 948a note.>> CONSTRUCTION OF PRESIDENTIAL
AUTHORITY TO ESTABLISH MILITARY COMMISSIONS.
The authority to establish military commissions under chapter 47A of
title 10, United States Code, as added by section 3(a), may not be
construed to alter or limit the authority of the President under the
Constitution of the United States and laws of the United States to
establish military commissions for areas declared to be under martial
law or in occupied territories should circumstances so require.
SEC. 3. MILITARY COMMISSIONS.
(a) Military Commissions.--
(1) In general.--Subtitle A of title 10, United States Code,
is amended by inserting after chapter 47 the following new
chapter:
``CHAPTER 47A--MILITARY COMMISSIONS
``Subchapter
``I. General Provisions........................................... 948a
``II. Composition of Military Commissions......................... 948h
``III. Pre-Trial Procedure........................................ 948q
``IV. Trial Procedure............................................. 949a
``V. Sentences.................................................... 949s
[[Page 120 STAT. 2601]]
``VI. Post-Trial Procedure and Review of Military Commissions..... 950a
``VII. Punitive Matters........................................... 950p
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.
``Sec. 948a. Definitions
``In this chapter:
``(1) Unlawful enemy combatant.--(A) The term `unlawful
enemy combatant' means--
``(i) a person who has engaged in hostilities or who
has purposefully and materially supported hostilities
against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who is
part of the Taliban, al Qaeda, or associated forces); or
``(ii) a person who, before, on, or after the date
of the enactment of the Military Commissions Act of
2006, has been determined to be an unlawful enemy
combatant by a Combatant Status Review Tribunal or
another competent tribunal established under the
authority of the President or the Secretary of Defense.
``(B) Co-belligerent.--In this paragraph, the term `co-
belligerent', with respect to the United States, means any State
or armed force joining and directly engaged with the United
States in hostilities or directly supporting hostilities against
a common enemy.
``(2) Lawful enemy combatant.--The term `lawful enemy
combatant' means a person who is--
``(A) a member of the regular forces of a State
party engaged in hostilities against the United States;
``(B) a member of a militia, volunteer corps, or
organized resistance movement belonging to a State party
engaged in such hostilities, which are under responsible
command, wear a fixed distinctive sign recognizable at a
distance, carry their arms openly, and abide by the law
of war; or
``(C) a member of a regular armed force who
professes allegiance to a government engaged in such
hostilities, but not recognized by the United States.
``(3) Alien.--The term `alien' means a person who is not a
citizen of the United States.
``(4) Classified information.--The term `classified
information' means the following:
``(A) Any information or material that has been
determined by the United States Government pursuant to
statute, Executive order, or regulation to require
protection against unauthorized disclosure for reasons
of national security.
``(B) Any restricted data, as that term is defined
in section 11 y. of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)).
[[Page 120 STAT. 2602]]
``(5) Geneva conventions.--The term `Geneva Conventions'
means the international conventions signed at Geneva on August
12, 1949.
``Sec. 948b. Military commissions generally
``(a) Purpose.--This chapter establishes procedures governing the
use of military commissions to try alien unlawful enemy combatants
engaged in hostilities against the United States for violations of the
law of war and other offenses triable by military commission.
``(b) Authority for Military Commissions Under This Chapter.--
<<NOTE: President.>> The President is authorized to establish military
commissions under this chapter for offenses triable by military
commission as provided in this chapter.
``(c) Construction of Provisions.--The procedures for military
commissions set forth in this chapter are based upon the procedures for
trial by general courts-martial under chapter 47 of this title (the
Uniform Code of Military Justice). Chapter 47 of this title does not, by
its terms, apply to trial by military commission except as specifically
provided in this chapter. The judicial construction and application of
that chapter are not binding on military commissions established under
this chapter.
``(d) Inapplicability of Certain Provisions.--(1) The following
provisions of this title shall not apply to trial by military commission
under this chapter:
``(A) Section 810 (article 10 of the Uniform Code of
Military Justice), relating to speedy trial, including any rule
of courts-martial relating to speedy trial.
``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
and (d) of the Uniform Code of Military Justice), relating to
compulsory self-incrimination.
``(C) Section 832 (article 32 of the Uniform Code of
Military Justice), relating to pretrial investigation.
``(2) <<NOTE: Applicability.>> Other provisions of chapter 47 of
this title shall apply to trial by military commission under this
chapter only to the extent provided by this chapter.
``(e) Treatment of Rulings and Precedents.--The findings, holdings,
interpretations, and other precedents of military commissions under this
chapter may not be introduced or considered in any hearing, trial, or
other proceeding of a court-martial convened under chapter 47 of this
title. The findings, holdings, interpretations, and other precedents of
military commissions under this chapter may not form the basis of any
holding, decision, or other determination of a court-martial convened
under that chapter.
``(f) Status of Commissions Under Common Article 3.--A military
commission established under this chapter is a regularly constituted
court, affording all the necessary `judicial guarantees which are
recognized as indispensable by civilized peoples' for purposes of common
Article 3 of the Geneva Conventions.
``(g) Geneva Conventions Not Establishing Source of Rights.--No
alien unlawful enemy combatant subject to trial by military commission
under this chapter may invoke the Geneva Conventions as a source of
rights.
``Sec. 948c. Persons subject to military commissions
``Any alien unlawful enemy combatant is subject to trial by military
commission under this chapter.
[[Page 120 STAT. 2603]]
``Sec. 948d. Jurisdiction of military commissions
``(a) Jurisdiction.--A military commission under this chapter shall
have jurisdiction to try any offense made punishable by this chapter or
the law of war when committed by an alien unlawful enemy combatant
before, on, or after September 11, 2001.
``(b) Lawful Enemy Combatants.--Military commissions under this
chapter shall not have jurisdiction over lawful enemy combatants. Lawful
enemy combatants who violate the law of war are subject to chapter 47 of
this title. Courts-martial established under that chapter shall have
jurisdiction to try a lawful enemy combatant for any offense made
punishable under this chapter.
``(c) Determination of Unlawful Enemy Combatant Status
Dispositive.--A finding, whether before, on, or after the date of the
enactment of the Military Commissions Act of 2006, by a Combatant Status
Review Tribunal or another competent tribunal established under the
authority of the President or the Secretary of Defense that a person is
an unlawful enemy combatant is dispositive for purposes of jurisdiction
for trial by military commission under this chapter.
``(d) Punishments.--A military commission under this chapter may,
under such limitations as the Secretary of Defense may prescribe,
adjudge any punishment not forbidden by this chapter, including the
penalty of death when authorized under this chapter or the law of war.
``Sec. 948e. Annual report to congressional committees
``(a) Annual Report Required.--Not later than December 31 each year,
the Secretary of Defense shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a report on any
trials conducted by military commissions under this chapter during such
year.
``(b) Form.--Each report under this section shall be submitted in
unclassified form, but may include a classified annex.
``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional
members.
``Sec. 948h. Who may convene military commissions
``Military commissions under this chapter may be convened by the
Secretary of Defense or by any officer or official of the United States
designated by the Secretary for that purpose.
``Sec. 948i. Who may serve on military commissions
``(a) In General.--Any commissioned officer of the armed forces on
active duty is eligible to serve on a military commission under this
chapter.
``(b) Detail of Members.--When convening a military commission under
this chapter, the convening authority shall detail as members of the
commission such members of the armed forces eligible under subsection
(a), as in the opinion of the convening
[[Page 120 STAT. 2604]]
authority, are best qualified for the duty by reason of age, education,
training, experience, length of service, and judicial temperament. No
member of an armed force is eligible to serve as a member of a military
commission when such member is the accuser or a witness for the
prosecution or has acted as an investigator or counsel in the same case.
``(c) Excuse of Members.--Before a military commission under this
chapter is assembled for the trial of a case, the convening authority
may excuse a member from participating in the case.
``Sec. 948j. Military judge of a military commission
``(a) Detail of Military Judge.--A military judge shall be detailed
to each military commission under this
chapter. <<NOTE: Regulations.>> The Secretary of Defense shall prescribe
regulations providing for the manner in which military judges are so
detailed to military commissions. The military judge shall preside over
each military commission to which he has been detailed.
``(b) Qualifications.--A military judge shall be a commissioned
officer of the armed forces who is a member of the bar of a Federal
court, or a member of the bar of the highest court of a State, and who
is certified to be qualified for duty under section 826 of this title
(article 26 of the Uniform Code of Military Justice) as a military judge
in general courts-martial by the Judge Advocate General of the armed
force of which such military judge is a member.
``(c) Ineligibility of Certain Individuals.--No person is eligible
to act as military judge in a case of a military commission under this
chapter if he is the accuser or a witness or has acted as investigator
or a counsel in the same case.
``(d) Consultation With Members; Ineligibility To Vote.--A military
judge detailed to a military commission under this chapter may not
consult with the members of the commission except in the presence of the
accused (except as otherwise provided in section 949d of this title),
trial counsel, and defense counsel, nor may he vote with the members of
the commission.
``(e) Other Duties.--A commissioned officer who is certified to be
qualified for duty as a military judge of a military commission under
this chapter may perform such other duties as are assigned to him by or
with the approval of the Judge Advocate General of the armed force of
which such officer is a member or the designee of such Judge Advocate
General.
``(f) Prohibition on Evaluation of Fitness by Convening Authority.--
The convening authority of a military commission under this chapter
shall not prepare or review any report concerning the effectiveness,
fitness, or efficiency of a military judge detailed to the military
commission which relates to his performance of duty as a military judge
on the military commission.
``Sec. 948k. Detail of trial counsel and defense counsel
``(a) Detail of Counsel Generally.--(1) Trial counsel and military
defense counsel shall be detailed for each military commission under
this chapter.
``(2) Assistant trial counsel and assistant and associate defense
counsel may be detailed for a military commission under this chapter.
[[Page 120 STAT. 2605]]
``(3) Military defense counsel for a military commission under this
chapter shall be detailed as soon as practicable after the swearing of
charges against the accused.
``(4) <<NOTE: Regulations.>> The Secretary of Defense shall
prescribe regulations providing for the manner in which trial counsel
and military defense counsel are detailed for military commissions under
this chapter and for the persons who are authorized to detail such
counsel for such commissions.
``(b) Trial Counsel.--Subject to subsection (e), trial counsel
detailed for a military commission under this chapter must be--
``(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice) who--
``(A) is a graduate of an accredited law school or
is a member of the bar of a Federal court or of the
highest court of a State; and
``(B) is certified as competent to perform duties as
trial counsel before general courts-martial by the Judge
Advocate General of the armed force of which he is a
member; or
``(2) a civilian who--
``(A) is a member of the bar of a Federal court or
of the highest court of a State; and
``(B) is otherwise qualified to practice before the
military commission pursuant to regulations prescribed
by the Secretary of Defense.
``(c) Military Defense Counsel.--Subject to subsection (e), military
defense counsel detailed for a military commission under this chapter
must be a judge advocate (as so defined) who is--
``(1) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The Chief
Prosecutor in a military commission under this chapter shall meet the
requirements set forth in subsection (b)(1).
``(2) The Chief Defense Counsel in a military commission under this
chapter shall meet the requirements set forth in subsection (c)(1).
``(e) Ineligibility of Certain Individuals.--No person who has acted
as an investigator, military judge, or member of a military commission
under this chapter in any case may act later as trial counsel or
military defense counsel in the same case. No person who has acted for
the prosecution before a military commission under this chapter may act
later in the same case for the defense, nor may any person who has acted
for the defense before a military commission under this chapter act
later in the same case for the prosecution.
``Sec. 948l. Detail or employment of reporters and interpreters
``(a) Court Reporters.--Under such regulations as the Secretary of
Defense may prescribe, the convening authority of a military commission
under this chapter shall detail to or employ for the commission
qualified court reporters, who shall make a verbatim
[[Page 120 STAT. 2606]]
recording of the proceedings of and testimony taken before the
commission.
``(b) Interpreters.--Under such regulations as the Secretary of
Defense may prescribe, the convening authority of a military commission
under this chapter may detail to or employ for the military commission
interpreters who shall interpret for the commission and, as necessary,
for trial counsel and defense counsel and for the accused.
``(c) Transcript; Record.--The transcript of a military commission
under this chapter shall be under the control of the convening authority
of the commission, who shall also be responsible for preparing the
record of the proceedings.
``Sec. 948m. Number of members; excuse of members; absent and additional
members
``(a) Number of Members.--(1) A military commission under this
chapter shall, except as provided in paragraph (2), have at least five
members.
``(2) In a case in which the accused before a military commission
under this chapter may be sentenced to a penalty of death, the military
commission shall have the number of members prescribed by section
949m(c) of this title.
``(b) Excuse of Members.--No member of a military commission under
this chapter may be absent or excused after the military commission has
been assembled for the trial of a case unless excused--
``(1) as a result of challenge;
``(2) by the military judge for physical disability or other
good cause; or
``(3) by order of the convening authority for good cause.
``(c) Absent and Additional Members.--Whenever a military commission
under this chapter is reduced below the number of members required by
subsection (a), the trial may not proceed unless the convening authority
details new members sufficient to provide not less than such number. The
trial may proceed with the new members present after the recorded
evidence previously introduced before the members has been read to the
military commission in the presence of the military judge, the accused
(except as provided in section 949d of this title), and counsel for both
sides.
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of
statements obtained by torture and other statements.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
``(a) Charges and Specifications.--Charges and specifications
against an accused in a military commission under this chapter shall be
signed by a person subject to chapter 47 of this title under oath before
a commissioned officer of the armed forces authorized to administer
oaths and shall state--
``(1) that the signer has personal knowledge of, or reason
to believe, the matters set forth therein; and
``(2) that they are true in fact to the best of the signer's
knowledge and belief.
[[Page 120 STAT. 2607]]
``(b) Notice to Accused.--Upon the swearing of the charges and
specifications in accordance with subsection (a), the accused shall be
informed of the charges against him as soon as practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; treatment of
statements obtained by torture and other
statements
``(a) In General.--No person shall be required to testify against
himself at a proceeding of a military commission under this chapter.
``(b) Exclusion of Statements Obtained by Torture.--A statement
obtained by use of torture shall not be admissible in a military
commission under this chapter, except against a person accused of
torture as evidence that the statement was made.
``(c) Statements Obtained Before Enactment of Detainee Treatment Act
of 2005.--A statement obtained before December 30, 2005 (the date of the
enactment of the Defense Treatment Act of 2005) in which the degree of
coercion is disputed may be admitted only if the military judge finds
that--
``(1) the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
and
``(2) the interests of justice would best be served by
admission of the statement into evidence.
``(d) Statements Obtained After Enactment of Detainee Treatment Act
of 2005.--A statement obtained on or after December 30, 2005 (the date
of the enactment of the Defense Treatment Act of 2005) in which the
degree of coercion is disputed may be admitted only if the military
judge finds that--
``(1) the totality of the circumstances renders the
statement reliable and possessing sufficient probative value;
``(2) the interests of justice would best be served by
admission of the statement into evidence; and
``(3) the interrogation methods used to obtain the statement
do not amount to cruel, inhuman, or degrading treatment
prohibited by section 1003 of the Detainee Treatment Act of
2005.
``Sec. 948s. Service of charges
``The trial counsel assigned to a case before a military commission
under this chapter shall cause to be served upon the accused and
military defense counsel a copy of the charges upon which trial is to be
had. Such charges shall be served in English and, if appropriate, in
another language that the accused understands. Such service shall be
made sufficiently in advance of trial to prepare a defense.
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
[[Page 120 STAT. 2608]]
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
``(a) Procedures and Rules of Evidence.--Pretrial, trial, and post-
trial procedures, including elements and modes of proof, for cases
triable by military commission under this chapter may be prescribed by
the Secretary of Defense, in consultation with the Attorney
General. <<NOTE: Applicability.>> Such procedures shall, so far as the
Secretary considers practicable or consistent with military or
intelligence activities, apply the principles of law and the rules of
evidence in trial by general courts-martial. Such procedures and rules
of evidence may not be contrary to or inconsistent with this chapter.
``(b) Rules for Military Commission.--(1) Notwithstanding any
departures from the law and the rules of evidence in trial by general
courts-martial authorized by subsection (a), the procedures and rules of
evidence in trials by military commission under this chapter shall
include the following:
``(A) The accused shall be permitted to present evidence in
his defense, to cross-examine the witnesses who testify against
him, and to examine and respond to evidence admitted against him
on the issue of guilt or innocence and for sentencing, as
provided for by this chapter.
``(B) The accused shall be present at all sessions of the
military commission (other than those for deliberations or
voting), except when excluded under section 949d of this title.
``(C) The accused shall receive the assistance of counsel as
provided for by section 948k.
``(D) The accused shall be permitted to represent himself,
as provided for by paragraph (3).
``(2) In establishing procedures and rules of evidence for military
commission proceedings, the Secretary of Defense may prescribe the
following provisions:
``(A) Evidence shall be admissible if the military judge
determines that the evidence would have probative value to a
reasonable person.
``(B) Evidence shall not be excluded from trial by military
commission on the grounds that the evidence was not seized
pursuant to a search warrant or other authorization.
``(C) A statement of the accused that is otherwise
admissible shall not be excluded from trial by military
commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence complies with the
provisions of section 948r of this title.
``(D) Evidence shall be admitted as authentic so long as--
``(i) the military judge of the military commission
determines that there is sufficient basis to find that
the evidence is what it is claimed to be; and
``(ii) the military judge instructs the members that
they may consider any issue as to authentication or
identification of evidence in determining the weight, if
any, to be given to the evidence.
``(E)(i) Except as provided in clause (ii), hearsay evidence
not otherwise admissible under the rules of evidence applicable
in trial by general courts-martial may be admitted in a trial by
military commission if the proponent of the evidence makes known
to the adverse party, sufficiently in advance to provide
[[Page 120 STAT. 2609]]
the adverse party with a fair opportunity to meet the evidence,
the intention of the proponent to offer the evidence, and the
particulars of the evidence (including information on the
general circumstances under which the evidence was obtained).
The disclosure of evidence under the preceding sentence is
subject to the requirements and limitations applicable to the
disclosure of classified information in section 949j(c) of this
title.
``(ii) Hearsay evidence not otherwise admissible under the
rules of evidence applicable in trial by general courts-martial
shall not be admitted in a trial by military commission if the
party opposing the admission of the evidence demonstrates that
the evidence is unreliable or lacking in probative value.
``(F) The military judge shall exclude any evidence the
probative value of which is substantially outweighed--
``(i) by the danger of unfair prejudice, confusion
of the issues, or misleading the commission; or
``(ii) by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
``(3)(A) The accused in a military commission under this chapter who
exercises the right to self-representation under paragraph (1)(D) shall
conform his deportment and the conduct of the defense to the rules of
evidence, procedure, and decorum applicable to trials by military
commission.
``(B) Failure of the accused to conform to the rules described in
subparagraph (A) may result in a partial or total revocation by the
military judge of the right of self-representation under paragraph
(1)(D). In such case, the detailed defense counsel of the accused or an
appropriately authorized civilian counsel shall perform the functions
necessary for the defense.
``(c) Delegation of Authority To Prescribe Regulations.--The
Secretary of Defense may delegate the authority of the Secretary to
prescribe regulations under this chapter.
``(d) Notification to Congressional Committees of Changes to
Procedures.--Not <<NOTE: Deadline.>> later than 60 days before the date
on which any proposed modification of the procedures in effect for
military commissions under this chapter goes into effect, the Secretary
of Defense shall submit to the Committee on Armed Services of the Senate
and the Committee on Armed Services of the House of Representatives a
report describing the modification.
``Sec. 949b. Unlawfully influencing action of military commission
``(a) In General.--(1) No authority convening a military commission
under this chapter may censure, reprimand, or admonish the military
commission, or any member, military judge, or counsel thereof, with
respect to the findings or sentence adjudged by the military commission,
or with respect to any other exercises of its or his functions in the
conduct of the proceedings.
``(2) No person may attempt to coerce or, by any unauthorized means,
influence--
``(A) the action of a military commission under this
chapter, or any member thereof, in reaching the findings or
sentence in any case;
``(B) the action of any convening, approving, or reviewing
authority with respect to his judicial acts; or
``(C) the exercise of professional judgment by trial counsel
or defense counsel.
[[Page 120 STAT. 2610]]
``(3) Paragraphs (1) and (2) do not apply with respect to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the substantive
and procedural aspects of military commissions; or
``(B) statements and instructions given in open proceedings
by a military judge or counsel.
``(b) Prohibition on Consideration of Actions on Commission in
Evaluation of Fitness.--In the preparation of an effectiveness, fitness,
or efficiency report or any other report or document used in whole or in
part for the purpose of determining whether a commissioned officer of
the armed forces is qualified to be advanced in grade, or in determining
the assignment or transfer of any such officer or whether any such
officer should be retained on active duty, no person may--
``(1) consider or evaluate the performance of duty of any
member of a military commission under this chapter; or
``(2) give a less favorable rating or evaluation to any
commissioned officer because of the zeal with which such
officer, in acting as counsel, represented any accused before a
military commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
``(a) Trial Counsel.--The trial counsel of a military commission
under this chapter shall prosecute in the name of the United States.
``(b) Defense Counsel.--(1) The accused shall be represented in his
defense before a military commission under this chapter as provided in
this subsection.
``(2) The accused shall be represented by military counsel detailed
under section 948k of this title.
``(3) The accused may be represented by civilian counsel if retained
by the accused, but only if such civilian counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, or possession of the United States or before a Federal
court;
``(C) has not been the subject of any sanction of
disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
``(D) has been determined to be eligible for access to
classified information that is classified at the level Secret or
higher; and
``(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
``(4) Civilian defense counsel shall protect any classified
information received during the course of representation of the accused
in accordance with all applicable law governing the protection of
classified information and may not divulge such information to any
person not authorized to receive it.
``(5) If the accused is represented by civilian counsel, detailed
military counsel shall act as associate counsel.
``(6) The accused is not entitled to be represented by more than one
military counsel. However, the person authorized under regulations
prescribed under section 948k of this title to detail counsel, in that
person's sole discretion, may detail additional military counsel to
represent the accused.
[[Page 120 STAT. 2611]]
``(7) Defense counsel may cross-examine each witness for the
prosecution who testifies before a military commission under this
chapter.
``Sec. 949d. Sessions
``(a) Sessions Without Presence of Members.--(1) At any time after
the service of charges which have been referred for trial by military
commission under this chapter, the military judge may call the military
commission into session without the presence of the members for the
purpose of--
``(A) hearing and determining motions raising defenses or
objections which are capable of determination without trial of
the issues raised by a plea of not guilty;
``(B) hearing and ruling upon any matter which may be ruled
upon by the military judge under this chapter, whether or not
the matter is appropriate for later consideration or decision by
the members;
``(C) if permitted by regulations prescribed by the
Secretary of Defense, receiving the pleas of the accused; and
``(D) performing any other procedural function which may be
performed by the military judge under this chapter or under
rules prescribed pursuant to section 949a of this title and
which does not require the presence of the members.
``(2) Except as provided in subsections (c) and (e), any proceedings
under paragraph (1) shall--
``(A) be conducted in the presence of the accused, defense
counsel, and trial counsel; and
``(B) be made part of the record.
``(b) Proceedings in Presence of Accused.--Except as provided in
subsections (c) and (e), all proceedings of a military commission under
this chapter, including any consultation of the members with the
military judge or counsel, shall--
``(1) be in the presence of the accused, defense counsel,
and trial counsel; and
``(2) be made a part of the record.
``(c) Deliberation or Vote of Members.--When the members of a
military commission under this chapter deliberate or vote, only the
members may be present.
``(d) Closure of Proceedings.--(1) The military judge may close to
the public all or part of the proceedings of a military commission under
this chapter, but only in accordance with this subsection.
``(2) The military judge may close to the public all or a portion of
the proceedings under paragraph (1) only upon making a specific finding
that such closure is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national security,
including intelligence or law enforcement sources, methods, or
activities; or
``(B) ensure the physical safety of individuals.
``(3) A finding under paragraph (2) may be based upon a
presentation, including a presentation ex parte or in camera, by either
trial counsel or defense counsel.
``(e) Exclusion of Accused From Certain Proceedings.--The military
judge may exclude the accused from any portion of a proceeding upon a
determination that, after being warned by
[[Page 120 STAT. 2612]]
the military judge, the accused persists in conduct that justifies
exclusion from the courtroom--
``(1) to ensure the physical safety of individuals; or
``(2) to prevent disruption of the proceedings by the
accused.
``(f) Protection of Classified Information.--
``(1) National security privilege.--(A) Classified
information shall be protected and is privileged from disclosure
if disclosure would be detrimental to the national security. The
rule in the preceding sentence applies to all stages of the
proceedings of military commissions under this chapter.
``(B) The privilege referred to in subparagraph (A) may be
claimed by the head of the executive or military department or
government agency concerned based on a finding by the head of
that department or agency that--
``(i) the information is properly classified; and
``(ii) disclosure of the information would be
detrimental to the national security.
``(C) A person who may claim the privilege referred to in
subparagraph (A) may authorize a representative, witness, or
trial counsel to claim the privilege and make the finding
described in subparagraph (B) on behalf of such person. The
authority of the representative, witness, or trial counsel to do
so is presumed in the absence of evidence to the contrary.
``(2) Introduction of classified information.--
``(A) Alternatives to disclosure.--To protect
classified information from disclosure, the military
judge, upon motion of trial counsel, shall authorize, to
the extent practicable--
``(i) the deletion of specified items of
classified information from documents to be
introduced as evidence before the military
commission;
``(ii) the substitution of a portion or
summary of the information for such classified
documents; or
``(iii) the substitution of a statement of
relevant facts that the classified information
would tend to prove.
``(B) Protection of sources, methods, or
activities.--The military judge, upon motion of trial
counsel, shall permit trial counsel to introduce
otherwise admissible evidence before the military
commission, while protecting from disclosure the
sources, methods, or activities by which the United
States acquired the evidence if the military judge finds
that (i) the sources, methods, or activities by which
the United States acquired the evidence are classified,
and (ii) the evidence is reliable. The military judge
may require trial counsel to present to the military
commission and the defense, to the extent practicable
and consistent with national security, an unclassified
summary of the sources, methods, or activities by which
the United States acquired the evidence.
``(C) Assertion of national security privilege at
trial.--During the examination of any witness, trial
counsel may object to any question, line of inquiry, or
motion to admit evidence that would require the
disclosure of classified information. Following such an
objection, the military judge shall take suitable action
to safeguard such classified information. Such action
may include the review
[[Page 120 STAT. 2613]]
of trial counsel's claim of privilege by the military
judge in camera and on an ex parte basis, and the delay
of proceedings to permit trial counsel to consult with
the department or agency concerned as to whether the
national security privilege should be asserted.
``(3) Consideration of privilege and related materials.--A
claim of privilege under this subsection, and any materials
submitted in support thereof, shall, upon request of the
Government, be considered by the military judge in camera and
shall not be disclosed to the accused.
``(4) Additional regulations.--The Secretary of Defense may
prescribe additional regulations, consistent with this
subsection, for the use and protection of classified information
during proceedings of military commissions under this chapter. A
report <<NOTE: Reports. Deadline.>> on any regulations so
prescribed, or modified, shall be submitted to the Committees on
Armed Services of the Senate and the House of Representatives
not later than 60 days before the date on which such regulations
or modifications, as the case may be, go into effect.
``Sec. 949e. Continuances
``The military judge in a military commission under this chapter
may, for reasonable cause, grant a continuance to any party for such
time, and as often, as may appear to be just.
``Sec. 949f. Challenges
``(a) Challenges Authorized.--The military judge and members of a
military commission under this chapter may be challenged by the accused
or trial counsel for cause stated to the commission. The military judge
shall determine the relevance and validity of challenges for cause. The
military judge may not receive a challenge to more than one person at a
time. Challenges by trial counsel shall ordinarily be presented and
decided before those by the accused are offered.
``(b) Peremptory Challenges.--Each accused and the trial counsel are
entitled to one peremptory challenge. The military judge may not be
challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever additional
members are detailed to a military commission under this chapter, and
after any challenges for cause against such additional members are
presented and decided, each accused and the trial counsel are entitled
to one peremptory challenge against members not previously subject to
peremptory challenge.
``Sec. 949g. Oaths
``(a) In General.--(1) Before performing their respective duties in
a military commission under this chapter, military judges, members,
trial counsel, defense counsel, reporters, and interpreters shall take
an oath to perform their duties faithfully.
``(2) <<NOTE: Regulations.>> The form of the oath required by
paragraph (1), the time and place of the taking thereof, the manner of
recording the same, and whether the oath shall be taken for all cases in
which duties are to be performed or for a particular case, shall be as
prescribed in regulations of the Secretary of Defense. Those regulations
may provide that--
``(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel may be taken at any
[[Page 120 STAT. 2614]]
time by any judge advocate or other person certified to be
qualified or competent for the duty; and
``(B) if such an oath is taken, such oath need not again be
taken at the time the judge advocate or other person is detailed
to that duty.
``(b) Witnesses.--Each witness before a military commission under
this chapter shall be examined on oath.
``Sec. 949h. Former jeopardy
``(a) In General.--No person may, without his consent, be tried by a
military commission under this chapter a second time for the same
offense.
``(b) Scope of Trial.--No proceeding in which the accused has been
found guilty by military commission under this chapter upon any charge
or specification is a trial in the sense of this section until the
finding of guilty has become final after review of the case has been
fully completed.
``Sec. 949i. Pleas of the accused
``(a) Entry of Plea of Not Guilty.--If an accused in a military
commission under this chapter after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that the accused has
entered the plea of guilty through lack of understanding of its meaning
and effect, or if the accused fails or refuses to plead, a plea of not
guilty shall be entered in the record, and the military commission shall
proceed as though the accused had pleaded not guilty.
``(b) Finding of Guilt After Guilty Plea.--With respect to any
charge or specification to which a plea of guilty has been made by the
accused in a military commission under this chapter and accepted by the
military judge, a finding of guilty of the charge or specification may
be entered immediately without a vote. The finding shall constitute the
finding of the commission unless the plea of guilty is withdrawn prior
to announcement of the sentence, in which event the proceedings shall
continue as though the accused had pleaded not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
``(a) Right <<NOTE: Regulations.>> of Defense Counsel.--Defense
counsel in a military commission under this chapter shall have a
reasonable opportunity to obtain witnesses and other evidence as
provided in regulations prescribed by the Secretary of Defense.
``(b) Process for Compulsion.--Process issued in a military
commission under this chapter to compel witnesses to appear and testify
and to compel the production of other evidence--
``(1) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(2) shall run to any place where the United States shall
have jurisdiction thereof.
``(c) Protection of Classified Information.--(1) With respect to the
discovery obligations of trial counsel under this section, the military
judge, upon motion of trial counsel, shall authorize, to the extent
practicable--
``(A) the deletion of specified items of classified
information from documents to be made available to the accused;
``(B) the substitution of a portion or summary of the
information for such classified documents; or
[[Page 120 STAT. 2615]]
``(C) the substitution of a statement admitting relevant
facts that the classified information would tend to prove.
``(2) The military judge, upon motion of trial counsel, shall
authorize trial counsel, in the course of complying with discovery
obligations under this section, to protect from disclosure the sources,
methods, or activities by which the United States acquired evidence if
the military judge finds that the sources, methods, or activities by
which the United States acquired such evidence are classified. The
military judge may require trial counsel to provide, to the extent
practicable, an unclassified summary of the sources, methods, or
activities by which the United States acquired such evidence.
``(d) Exculpatory Evidence.--(1) As soon as practicable, trial
counsel shall disclose to the defense the existence of any evidence
known to trial counsel that reasonably tends to exculpate the accused.
Where exculpatory evidence is classified, the accused shall be provided
with an adequate substitute in accordance with the procedures under
subsection (c).
``(2) In this subsection, the term `evidence known to trial
counsel', in the case of exculpatory evidence, means exculpatory
evidence that the prosecution would be required to disclose in a trial
by general court-martial under chapter 47 of this title.
``Sec. 949k. Defense of lack of mental responsibility
``(a) Affirmative Defense.--It is an affirmative defense in a trial
by military commission under this chapter that, at the time of the
commission of the acts constituting the offense, the accused, as a
result of a severe mental disease or defect, was unable to appreciate
the nature and quality or the wrongfulness of the acts. Mental disease
or defect does not otherwise constitute a defense.
``(b) Burden of Proof.--The accused in a military commission under
this chapter has the burden of proving the defense of lack of mental
responsibility by clear and convincing evidence.
``(c) Findings Following Assertion of Defense.--Whenever lack of
mental responsibility of the accused with respect to an offense is
properly at issue in a military commission under this chapter, the
military judge shall instruct the members of the commission as to the
defense of lack of mental responsibility under this section and shall
charge them to find the accused--
``(1) guilty;
``(2) not guilty; or
``(3) subject to subsection (d), not guilty by reason of
lack of mental responsibility.
``(d) Majority Vote Required for Finding.--The accused shall be
found not guilty by reason of lack of mental responsibility under
subsection (c)(3) only if a majority of the members present at the time
the vote is taken determines that the defense of lack of mental
responsibility has been established.
``Sec. 949l. Voting and rulings
``(a) Vote by Secret Written Ballot.--Voting by members of a
military commission under this chapter on the findings and on the
sentence shall be by secret written ballot.
``(b) Rulings.--(1) The military judge in a military commission
under this chapter shall rule upon all questions of law, including the
admissibility of evidence and all interlocutory questions arising during
the proceedings.
[[Page 120 STAT. 2616]]
``(2) Any ruling made by the military judge upon a question of law
or an interlocutory question (other than the factual issue of mental
responsibility of the accused) is conclusive and constitutes the ruling
of the military commission. However, a military judge may change his
ruling at any time during the trial.
``(c) Instructions Prior to Vote.--Before a vote is taken of the
findings of a military commission under this chapter, the military judge
shall, in the presence of the accused and counsel, instruct the members
as to the elements of the offense and charge the members--
``(1) that the accused must be presumed to be innocent until
his guilt is established by legal and competent evidence beyond
a reasonable doubt;
``(2) that in the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the doubt must
be resolved in favor of the accused and he must be acquitted;
``(3) that, if there is reasonable doubt as to the degree of
guilt, the finding must be in a lower degree as to which there
is no reasonable doubt; and
``(4) that the burden of proof to establish the guilt of the
accused beyond a reasonable doubt is upon the United States.
``Sec. 949m. Number of votes required
``(a) Conviction.--No person may be convicted by a military
commission under this chapter of any offense, except as provided in
section 949i(b) of this title or by concurrence of two-thirds of the
members present at the time the vote is taken.
``(b) Sentences.--(1) No person may be sentenced by a military
commission to suffer death, except insofar as--
``(A) the penalty of death is expressly authorized under
this chapter or the law of war for an offense of which the
accused has been found guilty;
``(B) trial counsel expressly sought the penalty of death by
filing an appropriate notice in advance of trial;
``(C) the accused is convicted of the offense by the
concurrence of all the members present at the time the vote is
taken; and
``(D) all the members present at the time the vote is taken
concur in the sentence of death.
``(2) No person may be sentenced to life imprisonment, or to
confinement for more than 10 years, by a military commission under this
chapter except by the concurrence of three-fourths of the members
present at the time the vote is taken.
``(3) All other sentences shall be determined by a military
commission by the concurrence of two-thirds of the members present at
the time the vote is taken.
``(c) Number of Members Required for Penalty of Death.--(1) Except
as provided in paragraph (2), in a case in which the penalty of death is
sought, the number of members of the military commission under this
chapter shall be not less than 12.
``(2) In any case described in paragraph (1) in which 12 members are
not reasonably available because of physical conditions or military
exigencies, the convening authority shall specify a lesser number of
members for the military commission (but not fewer than 9 members), and
the military commission may be assembled, and the trial held, with not
fewer than the number of members so specified. In such a case, the
convening authority shall make
[[Page 120 STAT. 2617]]
a detailed written statement, to be appended to the record, stating why
a greater number of members were not reasonably available.
``Sec. 949n. Military commission to announce action
``A military commission under this chapter shall announce its
findings and sentence to the parties as soon as determined.
``Sec. 949o. Record of trial
``(a) Record; Authentication.--Each military commission under this
chapter shall keep a separate, verbatim, record of the proceedings in
each case brought before it, and the record shall be authenticated by
the signature of the military judge. If the record cannot be
authenticated by the military judge by reason of his death, disability,
or absence, it shall be authenticated by the signature of the trial
counsel or by a member of the commission if the trial counsel is unable
to authenticate it by reason of his death, disability, or
absence. <<NOTE: Regulations.>> Where appropriate, and as provided in
regulations prescribed by the Secretary of Defense, the record of a
military commission under this chapter may contain a classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military commission
under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record of the
proceedings of the military commission under this chapter shall be given
the accused as soon as it is authenticated. If the record contains
classified information, or a classified annex, the accused shall be
given a redacted version of the record consistent with the requirements
of section 949d of this title. <<NOTE: Regulations.>> Defense counsel
shall have access to the unredacted record, as provided in regulations
prescribed by the Secretary of Defense.
``SUBCHAPTER V--SENTENCES
``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
``Punishment by flogging, or by branding, marking, or tattooing on
the body, or any other cruel or unusual punishment, may not be adjudged
by a military commission under this chapter or inflicted under this
chapter upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, is prohibited
under this chapter.
``Sec. 949t. Maximum limits
``The punishment which a military commission under this chapter may
direct for an offense may not exceed such limits as the President or
Secretary of Defense may prescribe for that offense.
``Sec. 949u. Execution of confinement
``(a) In General.--Under such regulations as the Secretary of
Defense may prescribe, a sentence of confinement adjudged by a military
commission under this chapter may be carried into execution by
confinement--
``(1) in any place of confinement under the control of any
of the armed forces; or
[[Page 120 STAT. 2618]]
``(2) in any penal or correctional institution under the
control of the United States or its allies, or which the United
States may be allowed to use.
``(b) Treatment During Confinement by Other Than the Armed Forces.--
Persons confined under subsection (a)(2) in a penal or correctional
institution not under the control of an armed force are subject to the
same discipline and treatment as persons confined or committed by the
courts of the United States or of the State, District of Columbia, or
place in which the institution is situated.
``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS
``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Appellate referral; waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District of
Columbia Circuit and the Supreme Court.
``950h. Appellate counsel.
``950i. Execution of sentence; procedures for execution of sentence of
death.
``950j. Finality or proceedings, findings, and sentences.
``Sec. 950a. Error of law; lesser included offense
``(a) Error of Law.--A finding or sentence of a military commission
under this chapter may not be held incorrect on the ground of an error
of law unless the error materially prejudices the substantial rights of
the accused.
``(b) Lesser Included Offense.--Any reviewing authority with the
power to approve or affirm a finding of guilty by a military commission
under this chapter may approve or affirm, instead, so much of the
finding as includes a lesser included offense.
``Sec. 950b. Review by the convening authority
``(a) Notice to Convening Authority of Findings and Sentence.--The
findings and sentence of a military commission under this chapter shall
be reported in writing promptly to the convening authority after the
announcement of the sentence.
``(b) Submittal of Matters by Accused to Convening Authority.--(1)
The accused may submit to the convening authority matters for
consideration by the convening authority with respect to the findings
and the sentence of the military commission under this chapter.
``(2)(A) <<NOTE: Deadline.>> Except as provided in subparagraph (B),
a submittal under paragraph (1) shall be made in writing within 20 days
after the accused has been given an authenticated record of trial under
section 949o(c) of this title.
``(B) If the accused shows that additional time is required for the
accused to make a submittal under paragraph (1), the convening authority
may, for good cause, extend the applicable period under subparagraph (A)
for not more than an additional 20 days.
``(3) The accused may waive his right to make a submittal to the
convening authority under paragraph (1). Such a waiver shall be made in
writing and may not be revoked. For the purposes of subsection (c)(2),
the time within which the accused may make
[[Page 120 STAT. 2619]]
a submittal under this subsection shall be deemed to have expired upon
the submittal of a waiver under this paragraph to the convening
authority.
``(c) Action by Convening Authority.--(1) The authority under this
subsection to modify the findings and sentence of a military commission
under this chapter is a matter of the sole discretion and prerogative of
the convening authority.
``(2)(A) The convening authority shall take action on the sentence
of a military commission under this chapter.
``(B) <<NOTE: Regulations.>> Subject to regulations prescribed by
the Secretary of Defense, action on the sentence under this paragraph
may be taken only after consideration of any matters submitted by the
accused under subsection (b) or after the time for submitting such
matters expires, whichever is earlier.
``(C) In taking action under this paragraph, the convening authority
may, in his sole discretion, approve, disapprove, commute, or suspend
the sentence in whole or in part. The convening authority may not
increase a sentence beyond that which is found by the military
commission.
``(3) The convening authority is not required to take action on the
findings of a military commission under this chapter. If the convening
authority takes action on the findings, the convening authority may, in
his sole discretion, may--
``(A) dismiss any charge or specification by setting aside a
finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding of
guilty to an offense that is a lesser included offense of the
offense stated in the charge.
``(4) The convening authority shall serve on the accused or on
defense counsel notice of any action taken by the convening authority
under this subsection.
``(d) Order of Revision or Rehearing.--(1) Subject to paragraphs (2)
and (3), the convening authority of a military commission under this
chapter may, in his sole discretion, order a proceeding in revision or a
rehearing.
``(2)(A) Except as provided in subparagraph (B), a proceeding in
revision may be ordered by the convening authority if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
the military commission with respect to the findings or sentence
that can be rectified without material prejudice to the
substantial rights of the accused.
``(B) In no case may a proceeding in revision--
``(i) reconsider a finding of not guilty of a specification
or a ruling which amounts to a finding of not guilty;
``(ii) reconsider a finding of not guilty of any charge,
unless there has been a finding of guilty under a specification
laid under that charge, which sufficiently alleges a violation;
or
``(iii) increase the severity of the sentence unless the
sentence prescribed for the offense is mandatory.
``(3) A rehearing may be ordered by the convening authority if the
convening authority disapproves the findings and sentence and states the
reasons for disapproval of the findings. If the convening authority
disapproves the finding and sentence and does not order a rehearing, the
convening authority shall dismiss the charges. A rehearing as to the
findings may not be ordered by
[[Page 120 STAT. 2620]]
the convening authority when there is a lack of sufficient evidence in
the record to support the findings. A rehearing as to the sentence may
be ordered by the convening authority if the convening authority
disapproves the sentence.
``Sec. 950c. Appellate referral; waiver or withdrawal of appeal
``(a) Automatic Referral for Appellate Review.--Except as provided
under subsection (b), in each case in which the final decision of a
military commission (as approved by the convening authority) includes a
finding of guilty, the convening authority shall refer the case to the
Court of Military Commission Review. Any
such <<NOTE: Regulations.>> referral shall be made in accordance with
procedures prescribed under regulations of the Secretary.
``(b) Waiver of Right of Review.--(1) In each case subject to
appellate review under section 950f of this title, except a case in
which the sentence as approved under section 950b of this title extends
to death, the accused may file with the convening authority a statement
expressly waiving the right of the accused to such review.
``(2) A waiver under paragraph (1) shall be signed by both the
accused and a defense counsel.
``(3) <<NOTE: Deadline.>> A waiver under paragraph (1) must be
filed, if at all, within 10 days after notice on the action is served on
the accused or on defense counsel under section 950b(c)(4) of this
title. The convening authority, for good cause, may extend the period
for such filing by not more than 30 days.
``(c) Withdrawal of Appeal.--Except in a case in which the sentence
as approved under section 950b of this title extends to death, the
accused may withdraw an appeal at any time.
``(d) Effect of Waiver or Withdrawal.--A waiver of the right to
appellate review or the withdrawal of an appeal under this section bars
review under section 950f of this title.
``Sec. 950d. Appeal by the United States
``(a) Interlocutory Appeal.--(1) Except as provided in paragraph
(2), in a trial by military commission under this chapter, the United
States may take an interlocutory appeal to the Court of Military
Commission Review of any order or ruling of the military judge that--
``(A) terminates proceedings of the military commission with
respect to a charge or specification;
``(B) excludes evidence that is substantial proof of a fact
material in the proceeding; or
``(C) relates to a matter under subsection (d), (e), or (f)
of section 949d of this title or section 949j(c) of this title.
``(2) The United States may not appeal under paragraph (1) an order
or ruling that is, or amounts to, a finding of not guilty by the
military commission with respect to a charge or specification.
``(b) Notice of Appeal.--The United States shall take an appeal of
an order or ruling under subsection (a) by filing a notice of appeal
with the military judge within five days after the date of such order or
ruling.
``(c) Appeal.--An appeal under this section shall be forwarded, by
means specified in regulations prescribed the Secretary of Defense,
directly to the Court of Military Commission Review. In ruling on an
appeal under this section, the Court may act only with respect to
matters of law.
[[Page 120 STAT. 2621]]
``(d) Appeal <<NOTE: Deadline.>> From Adverse Ruling.--The United
States may appeal an adverse ruling on an appeal under subsection (c) to
the United States Court of Appeals for the District of Columbia Circuit
by filing a petition for review in the Court of Appeals within 10 days
after the date of such ruling. Review under this subsection shall be at
the discretion of the Court of Appeals.
``Sec. 950e. Rehearings
``(a) Composition of Military Commission for Rehearing.--Each
rehearing under this chapter shall take place before a military
commission under this chapter composed of members who were not members
of the military commission which first heard the case.
``(b) Scope of Rehearing.--(1) Upon a rehearing--
``(A) the accused may not be tried for any offense of which
he was found not guilty by the first military commission; and
``(B) no sentence in excess of or more than the original
sentence may be imposed unless--
``(i) the sentence is based upon a finding of guilty
of an offense not considered upon the merits in the
original proceedings; or
``(ii) the sentence prescribed for the offense is
mandatory.
``(2) Upon a rehearing, if the sentence approved after the first
military commission was in accordance with a pretrial agreement and the
accused at the rehearing changes his plea with respect to the charges or
specifications upon which the pretrial agreement was based, or otherwise
does not comply with pretrial agreement, the sentence as to those
charges or specifications may include any punishment not in excess of
that lawfully adjudged at the first military commission.
``Sec. 950f. Review by Court of Military Commission Review
``(a) Establishment.--The Secretary of Defense shall establish a
Court of Military Commission Review which shall be composed of one or
more panels, and each such panel shall be composed of not less than
three appellate military judges. For the purpose of reviewing military
commission decisions under this chapter, the court may sit in panels or
as a whole in accordance with rules prescribed by the Secretary.
``(b) Appellate Military Judges.--The Secretary shall assign
appellate military judges to a Court of Military Commission Review. Each
appellate military judge shall meet the qualifications for military
judges prescribed by section 948j(b) of this title or shall be a
civilian with comparable qualifications. No person may be serve as an
appellate military judge in any case in which that person acted as a
military judge, counsel, or reviewing official.
``(c) Cases <<NOTE: Regulations.>> To Be Reviewed.--The Court of
Military Commission Review, in accordance with procedures prescribed
under regulations of the Secretary, shall review the record in each case
that is referred to the Court by the convening authority under section
950c of this title with respect to any matter of law raised by the
accused.
``(d) Scope of Review.--In a case reviewed by the Court of Military
Commission Review under this section, the Court may act only with
respect to matters of law.
[[Page 120 STAT. 2622]]
``Sec. 950g. Review by the United States Court of Appeals for the
District of Columbia Circuit and the Supreme
Court
``(a) Exclusive Appellate Jurisdiction.--(1)(A) Except as provided
in subparagraph (B), the United States Court of Appeals for the District
of Columbia Circuit shall have exclusive jurisdiction to determine the
validity of a final judgment rendered by a military commission (as
approved by the convening authority) under this chapter.
``(B) The Court of Appeals may not review the final judgment until
all other appeals under this chapter have been waived or exhausted.
``(2) <<NOTE: Deadline. Notice.>> A petition for review must be
filed by the accused in the Court of Appeals not later than 20 days
after the date on which--
``(A) written notice of the final decision of the Court of
Military Commission Review is served on the accused or on
defense counsel; or
``(B) the accused submits, in the form prescribed by section
950c of this title, a written notice waiving the right of the
accused to review by the Court of Military Commission Review
under section 950f of this title.
``(b) Standard for Review.--In a case reviewed by it under this
section, the Court of Appeals may act only with respect to matters of
law.
``(c) Scope of Review.--The jurisdiction of the Court of Appeals on
an appeal under subsection (a) shall be limited to the consideration
of--
``(1) whether the final decision was consistent with the
standards and procedures specified in this chapter; and
``(2) to the extent applicable, the Constitution and the
laws of the United States.
``(d) Supreme Court.--The Supreme Court may review by writ of
certiorari the final judgment of the Court of Appeals pursuant to
section 1257 of title 28.
``Sec. 950h. Appellate counsel
``(a) Appointment.--The <<NOTE: Regulations.>> Secretary of Defense
shall, by regulation, establish procedures for the appointment of
appellate counsel for the United States and for the accused in military
commissions under this chapter. Appellate counsel shall meet the
qualifications for counsel appearing before military commissions under
this chapter.
``(b) Representation of United States.--Appellate counsel appointed
under subsection (a)--
``(1) shall represent the United States in any appeal or
review proceeding under this chapter before the Court of
Military Commission Review; and
``(2) may, when requested to do so by the Attorney General
in a case arising under this chapter, represent the United
States before the United States Court of Appeals for the
District of Columbia Circuit or the Supreme Court.
``(c) Representation of Accused.--The accused shall be represented
by appellate counsel appointed under subsection (a) before the Court of
Military Commission Review, the United States Court of Appeals for the
District of Columbia Circuit, and the Supreme Court, and by civilian
counsel if retained by the accused. Any
[[Page 120 STAT. 2623]]
such civilian counsel shall meet the qualifications under paragraph (3)
of section 949c(b) of this title for civilian counsel appearing before
military commissions under this chapter and shall be subject to the
requirements of paragraph (4) of that section.
``Sec. 950i. Execution of sentence; procedures for execution of sentence
of death
``(a) In General.--The Secretary of Defense is authorized to carry
out a sentence imposed by a military commission under this chapter in
accordance with such procedures as the Secretary may prescribe.
``(b) Execution of Sentence of Death Only Upon Approval by the
President.--If the sentence of a military commission under this chapter
extends to death, that part of the sentence providing for death may not
be executed until approved by the President. In such a case, the
President may commute, remit, or suspend the sentence, or any part
thereof, as he sees fit.
``(c) Execution of Sentence of Death Only Upon Final Judgment of
Legality of Proceedings.--(1) If the sentence of a military commission
under this chapter extends to death, the sentence may not be executed
until there is a final judgment as to the legality of the proceedings
(and with respect to death, approval under subsection (b)).
``(2) A judgment as to legality of proceedings is final for purposes
of paragraph (1) when--
``(A) the time for the accused to file a petition for review
by the Court of Appeals for the District of Columbia Circuit has
expired and the accused has not filed a timely petition for such
review and the case is not otherwise under review by that Court;
or
``(B) review is completed in accordance with the judgment of
the United States Court of Appeals for the District of Columbia
Circuit and--
``(i) a petition for a writ of certiorari is not
timely filed;
``(ii) such a petition is denied by the Supreme
Court; or
``(iii) review is otherwise completed in accordance
with the judgment of the Supreme Court.
``(d) Suspension of Sentence.--The Secretary of the Defense, or the
convening authority acting on the case (if other than the Secretary),
may suspend the execution of any sentence or part thereof in the case,
except a sentence of death.
``Sec. 950j. Finality or proceedings, findings, and sentences
``(a) Finality.--The appellate review of records of trial provided
by this chapter, and the proceedings, findings, and sentences of
military commissions as approved, reviewed, or affirmed as required by
this chapter, are final and conclusive. Orders publishing the
proceedings of military commissions under this chapter are binding upon
all departments, courts, agencies, and officers of the United States,
except as otherwise provided by the President.
``(b) Provisions of Chapter Sole Basis for Review of Military
Commission Procedures and Actions.--Except as otherwise provided in this
chapter and notwithstanding any other provision of law (including
section 2241 of title 28 or any other habeas corpus provision), no
court, justice, or judge shall have jurisdiction
[[Page 120 STAT. 2624]]
to hear or consider any claim or cause of action whatsoever, including
any action pending on or filed after the date of the enactment of the
Military Commissions Act of 2006, relating to the prosecution, trial, or
judgment of a military commission under this chapter, including
challenges to the lawfulness of procedures of military commissions under
this chapter.
``SUBCHAPTER VII--PUNITIVE MATTERS
``Sec.
``950p. Statement of substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser included offense.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commissions.
``950w. Perjury and obstruction of justice; contempt.
``Sec. 950p. Statement of substantive offenses
``(a) Purpose.--The provisions of this subchapter codify offenses
that have traditionally been triable by military commissions. This
chapter does not establish new crimes that did not exist before its
enactment, but rather codifies those crimes for trial by military
commission.
``(b) Effect.--Because the provisions of this subchapter (including
provisions that incorporate definitions in other provisions of law) are
declarative of existing law, they do not preclude trial for crimes that
occurred before the date of the enactment of this chapter.
``Sec. 950q. Principals
``Any person is punishable as a principal under this chapter who--
``(1) commits an offense punishable by this chapter, or
aids, abets, counsels, commands, or procures its commission;
``(2) causes an act to be done which if directly performed
by him would be punishable by this chapter; or
``(3) is a superior commander who, with regard to acts
punishable under this chapter, knew, had reason to know, or
should have known, that a subordinate was about to commit such
acts or had done so and who failed to take the necessary and
reasonable measures to prevent such acts or to punish the
perpetrators thereof.
``Sec. 950r. Accessory after the fact
``Any person subject to this chapter who, knowing that an offense
punishable by this chapter has been committed, receives, comforts, or
assists the offender in order to hinder or prevent his apprehension,
trial, or punishment shall be punished as a military commission under
this chapter may direct.
``Sec. 950s. Conviction of lesser included offense
``An accused may be found guilty of an offense necessarily included
in the offense charged or of an attempt to commit either the offense
charged or an attempt to commit either the offense charged or an offense
necessarily included therein.
[[Page 120 STAT. 2625]]
``Sec. 950t. Attempts
``(a) In General.--Any person subject to this chapter who attempts
to commit any offense punishable by this chapter shall be punished as a
military commission under this chapter may direct.
``(b) Scope of Offense.--An act, done with specific intent to commit
an offense under this chapter, amounting to more than mere preparation
and tending, even though failing, to effect its commission, is an
attempt to commit that offense.
``(c) Effect of Consummation.--Any person subject to this chapter
may be convicted of an attempt to commit an offense although it appears
on the trial that the offense was consummated.
``Sec. 950u. Solicitation
``Any person subject to this chapter who solicits or advises another
or others to commit one or more substantive offenses triable by military
commission under this chapter shall, if the offense solicited or advised
is attempted or committed, be punished with the punishment provided for
the commission of the offense, but, if the offense solicited or advised
is not committed or attempted, he shall be punished as a military
commission under this chapter may direct.
``Sec. 950v. Crimes triable by military commissions
``(a) Definitions and Construction.--In this section:
``(1) Military objective.--The term `military objective'
means--
``(A) combatants; and
``(B) those objects during an armed conflict--
``(i) which, by their nature, location,
purpose, or use, effectively contribute to the
opposing force's war-fighting or war-sustaining
capability; and
``(ii) the total or partial destruction,
capture, or neutralization of which would
constitute a definite military advantage to the
attacker under the circumstances at the time of
the attack.
``(2) Protected person.--The term `protected person' means
any person entitled to protection under one or more of the
Geneva Conventions, including--
``(A) civilians not taking an active part in
hostilities;
``(B) military personnel placed hors de combat by
sickness, wounds, or detention; and
``(C) military medical or religious personnel.
``(3) Protected property.--The term `protected property'
means property specifically protected by the law of war (such as
buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals, or places
where the sick and wounded are collected), if such property is
not being used for military purposes or is not otherwise a
military objective. Such term includes objects properly
identified by one of the distinctive emblems of the Geneva
Conventions, but does not include civilian property that is a
military objective.
``(4) Construction.--The intent specified for an offense
under paragraph (1), (2), (3), (4), or (12) of subsection (b)
precludes the applicability of such offense with regard to--
``(A) collateral damage; or
[[Page 120 STAT. 2626]]
``(B) death, damage, or injury incident to a lawful
attack.
``(b) Offenses.--The following offenses shall be triable by military
commission under this chapter at any time without limitation:
``(1) Murder of protected persons.--Any person subject to
this chapter who intentionally kills one or more protected
persons shall be punished by death or such other punishment as a
military commission under this chapter may direct.
``(2) Attacking civilians.--Any person subject to this
chapter who intentionally engages in an attack upon a civilian
population as such, or individual civilians not taking active
part in hostilities, shall be punished, if death results to one
or more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(3) Attacking civilian objects.--Any person subject to
this chapter who intentionally engages in an attack upon a
civilian object that is not a military objective shall be
punished as a military commission under this chapter may direct.
``(4) Attacking protected property.--Any person subject to
this chapter who intentionally engages in an attack upon
protected property shall be punished as a military commission
under this chapter may direct.
``(5) Pillaging.--Any person subject to this chapter who
intentionally and in the absence of military necessity
appropriates or seizes property for private or personal use,
without the consent of a person with authority to permit such
appropriation or seizure, shall be punished as a military
commission under this chapter may direct.
``(6) Denying quarter.--Any person subject to this chapter
who, with effective command or control over subordinate groups,
declares, orders, or otherwise indicates to those groups that
there shall be no survivors or surrender accepted, with the
intent to threaten an adversary or to conduct hostilities such
that there would be no survivors or surrender accepted, shall be
punished as a military commission under this chapter may direct.
``(7) Taking hostages.--Any person subject to this chapter
who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person or
persons with the intent of compelling any nation, person other
than the hostage, or group of persons to act or refrain from
acting as an explicit or implicit condition for the safety or
release of such person or persons, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(8) Employing poison or similar weapons.--Any person
subject to this chapter who intentionally, as a method of
warfare, employs a substance or weapon that releases a substance
that causes death or serious and lasting damage to health in the
ordinary course of events, through its asphyxiating,
bacteriological, or toxic properties, shall be punished, if
death
[[Page 120 STAT. 2627]]
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(9) Using protected persons as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of, a protected person with the intent to shield a
military objective from attack, or to shield, favor, or impede
military operations, shall be punished, if death results to one
or more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(10) Using protected property as a shield.--Any person
subject to this chapter who positions, or otherwise takes
advantage of the location of, protected property with the intent
to shield a military objective from attack, or to shield, favor,
or impede military operations, shall be punished as a military
commission under this chapter may direct.
``(11) Torture.--
``(A) Offense.--Any person subject to this chapter
who commits an act specifically intended to inflict
severe physical or mental pain or suffering (other than
pain or suffering incidental to lawful sanctions) upon
another person within his custody or physical control
for the purpose of obtaining information or a
confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind, shall be
punished, if death results to one or more of the
victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death
does not result to any of the victims, by such
punishment, other than death, as a military commission
under this chapter may direct.
``(B) Severe mental pain or suffering defined.--In
this section, the term `severe mental pain or suffering'
has the meaning given that term in section 2340(2) of
title 18.
``(12) Cruel or inhuman treatment.--
``(A) Offense.--Any person subject to this chapter
who commits an act intended to inflict severe or serious
physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions), including
serious physical abuse, upon another within his custody
or control shall be punished, if death results to the
victim, by death or such other punishment as a military
commission under this chapter may direct, and, if death
does not result to the victim, by such punishment, other
than death, as a military commission under this chapter
may direct.
``(B) Definitions.--In this paragraph:
``(i) The term `serious physical pain or
suffering' means bodily injury that involves--
``(I) a substantial risk of death;
``(II) extreme physical pain;
[[Page 120 STAT. 2628]]
``(III) a burn or physical
disfigurement of a serious nature (other
than cuts, abrasions, or bruises); or
``(IV) significant loss or
impairment of the function of a bodily
member, organ, or mental faculty.
``(ii) The term `severe mental pain or
suffering' has the meaning given that term in
section 2340(2) of title 18.
``(iii) The term `serious mental pain or
suffering' has the meaning given the term `severe
mental pain or suffering' in section 2340(2) of
title 18, except that--
``(I) the term `serious' shall
replace the term `severe' where it
appears; and
``(II) as to conduct occurring after
the date of the enactment of the
Military Commissions Act of 2006, the
term `serious and non-transitory mental
harm (which need not be prolonged)'
shall replace the term `prolonged mental
harm' where it appears.
``(13) Intentionally causing serious bodily injury.--
``(A) Offense.--Any person subject to this chapter
who intentionally causes serious bodily injury to one or
more persons, including lawful combatants, in violation
of the law of war shall be punished, if death results to
one or more of the victims, by death or such other
punishment as a military commission under this chapter
may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``(B) Serious bodily injury defined.--In this
paragraph, the term `serious bodily injury' means bodily
injury which involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) protracted and obvious disfigurement;
or
``(iv) protracted loss or impairment of the
function of a bodily member, organ, or mental
faculty.
``(14) Mutilating or maiming.--Any person subject to this
chapter who intentionally injures one or more protected persons
by disfiguring the person or persons by any mutilation of the
person or persons, or by permanently disabling any member, limb,
or organ of the body of the person or persons, without any
legitimate medical or dental purpose, shall be punished, if
death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission
under this chapter may direct.
``(15) Murder in violation of the law of war.--Any person
subject to this chapter who intentionally kills one or more
persons, including lawful combatants, in violation of the law of
war shall be punished by death or such other punishment as a
military commission under this chapter may direct.
``(16) Destruction of property in violation of the law of
war.--Any person subject to this chapter who intentionally
destroys property belonging to another person in violation of
[[Page 120 STAT. 2629]]
the law of war shall punished as a military commission under
this chapter may direct.
``(17) Using treachery or perfidy.--Any person subject to
this chapter who, after inviting the confidence or belief of one
or more persons that they were entitled to, or obliged to
accord, protection under the law of war, intentionally makes use
of that confidence or belief in killing, injuring, or capturing
such person or persons shall be punished, if death results to
one or more of the victims, by death or such other punishment as
a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter
may direct.
``(18) Improperly using a flag of truce.--Any person subject
to this chapter who uses a flag of truce to feign an intention
to negotiate, surrender, or otherwise suspend hostilities when
there is no such intention shall be punished as a military
commission under this chapter may direct.
``(19) Improperly using a distinctive emblem.--Any person
subject to this chapter who intentionally uses a distinctive
emblem recognized by the law of war for combatant purposes in a
manner prohibited by the law of war shall be punished as a
military commission under this chapter may direct.
``(20) Intentionally mistreating a dead body.--Any person
subject to this chapter who intentionally mistreats the body of
a dead person, without justification by legitimate military
necessity, shall be punished as a military commission under this
chapter may direct.
``(21) Rape.--Any person subject to this chapter who
forcibly or with coercion or threat of force wrongfully invades
the body of a person by penetrating, however slightly, the anal
or genital opening of the victim with any part of the body of
the accused, or with any foreign object, shall be punished as a
military commission under this chapter may direct.
``(22) Sexual assault or abuse.--Any person subject to this
chapter who forcibly or with coercion or threat of force engages
in sexual contact with one or more persons, or causes one or
more persons to engage in sexual contact, shall be punished as a
military commission under this chapter may direct.
``(23) Hijacking or hazarding a vessel or aircraft.--Any
person subject to this chapter who intentionally seizes,
exercises unauthorized control over, or endangers the safe
navigation of a vessel or aircraft that is not a legitimate
military objective shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(24) Terrorism.--Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or more
protected persons, or intentionally engages in an act that
evinces a wanton disregard for human life, in a manner
calculated to influence or affect the conduct of government or
civilian population by intimidation or coercion, or to retaliate
against government conduct, shall be punished, if death results
[[Page 120 STAT. 2630]]
to one or more of the victims, by death or such other punishment
as a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter
may direct.
``(25) Providing material support for terrorism.--
``(A) Offense.--Any person subject to this chapter
who provides material support or resources, knowing or
intending that they are to be used in preparation for,
or in carrying out, an act of terrorism (as set forth in
paragraph (24)), or who intentionally provides material
support or resources to an international terrorist
organization engaged in hostilities against the United
States, knowing that such organization has engaged or
engages in terrorism (as so set forth), shall be
punished as a military commission under this chapter may
direct.
``(B) Material support or resources defined.--In
this paragraph, the term `material support or resources'
has the meaning given that term in section 2339A(b) of
title 18.
``(26) Wrongfully aiding the enemy.--Any person subject to
this chapter who, in breach of an allegiance or duty to the
United States, knowingly and intentionally aids an enemy of the
United States, or one of the co-belligerents of the enemy, shall
be punished as a military commission under this chapter may
direct.
``(27) Spying.--Any person subject to this chapter who with
intent or reason to believe that it is to be used to the injury
of the United States or to the advantage of a foreign power,
collects or attempts to collect information by clandestine means
or while acting under false pretenses, for the purpose of
conveying such information to an enemy of the United States, or
one of the co-belligerents of the enemy, shall be punished by
death or such other punishment as a military commission under
this chapter may direct.
``(28) Conspiracy.--Any person subject to this chapter who
conspires to commit one or more substantive offenses triable by
military commission under this chapter, and who knowingly does
any overt act to effect the object of the conspiracy, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any of
the victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``Sec. 950w. Perjury and obstruction of justice; contempt
``(a) Perjury and Obstruction of Justice.--A military commission
under this chapter may try offenses and impose such punishment as the
military commission may direct for perjury, false testimony, or
obstruction of justice related to military commissions under this
chapter.
``(b) Contempt.--A military commission under this chapter may punish
for contempt any person who uses any menacing word, sign, or gesture in
its presence, or who disturbs its proceedings by any riot or
disorder.''.
(2) Tables of chapters amendments.--The tables of chapters
at the beginning of subtitle A, and at the beginning of
[[Page 120 STAT. 2631]]
part II of subtitle A, of title 10, United States Code, are each
amended by inserting after the item relating to chapter 47 the
following new item:
``47A. Military Commissions......................................948a''.
(b) Submittal <<NOTE: Deadline. Reports. 10 USC 948a note.>> of
Procedures to Congress.--Not later than 90 days after the date of the
enactment of this Act, the Secretary of Defense shall submit to the
Committees on Armed Services of the Senate and the House of
Representatives a report setting forth the procedures for military
commissions prescribed under chapter 47A of title 10, United States Code
(as added by subsection (a)).
SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.
(a) Conforming Amendments.--Chapter 47 of title 10, United States
Code (the Uniform Code of Military Justice), is amended as follows:
(1) Applicability to lawful enemy combatants.--Section
802(a) (article 2(a)) is amended by adding at the end the
following new paragraph:
``(13) Lawful enemy combatants (as that term is defined in
section 948a(2) of this title) who violate the law of war.''.
(2) Exclusion of applicability to chapter 47a commissions.--
Sections 821, 828, 848, 850(a), 904, and 906 (articles 21, 28,
48, 50(a), 104, and 106) are amended by adding at the end the
following new sentence: ``This section does not apply to a
military commission established under chapter 47A of this
title.''.
(3) Inapplicability of requirements relating to
regulations.--Section 836 (article 36) is amended--
(A) in subsection (a), by inserting ``, except as
provided in chapter 47A of this title,'' after ``but
which may not''; and
(B) in subsection (b), by inserting before the
period at the end ``, except insofar as applicable to
military commissions established under chapter 47A of
this title''.
(b) Punitive Article of Conspiracy.--Section 881 of title 10, United
States Code (article 81 of the Uniform Code of Military Justice), is
amended--
(1) by inserting ``(a)'' before ``Any person''; and
(2) by adding at the end the following new subsection:
``(b) Any person subject to this chapter who conspires with any
other person to commit an offense under the law of war, and who
knowingly does an overt act to effect the object of the conspiracy,
shall be punished, if death results to one or more of the victims, by
death or such other punishment as a court-martial or military commission
may direct, and, if death does not result to any of the victims, by such
punishment, other than death, as a court-martial or military commission
may direct.''.
SEC. 5. <<NOTE: 28 USC 2241 note.>> TREATY OBLIGATIONS NOT ESTABLISHING
GROUNDS FOR CERTAIN CLAIMS.
(a) In General.--No person may invoke the Geneva Conventions or any
protocols thereto in any habeas corpus or other civil action or
proceeding to which the United States, or a current or former officer,
employee, member of the Armed Forces, or other agent of the United
States is a party as a source of rights in any court of the United
States or its States or territories.
[[Page 120 STAT. 2632]]
(b) Geneva Conventions Defined.--In this section, the term ``Geneva
Conventions'' means--
(1) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3114);
(2) the Convention for the Amelioration of the Condition of
the Wounded, Sick, and Shipwrecked Members of the Armed Forces
at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(3) the Convention Relative to the Treatment of Prisoners of
War, done at Geneva August 12, 1949 (6 UST 3316); and
(4) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).
SEC. 6. <<NOTE: 18 USC 2441 note.>> IMPLEMENTATION OF TREATY
OBLIGATIONS.
(a) Implementation of Treaty Obligations.--
(1) In general.--The acts enumerated in subsection (d) of
section 2441 of title 18, United States Code, as added by
subsection (b) of this section, and in subsection (c) of this
section, constitute violations of common Article 3 of the Geneva
Conventions prohibited by United States law.
(2) Prohibition on grave breaches.--The provisions of
section 2441 of title 18, United States Code, as amended by this
section, fully satisfy the obligation under Article 129 of the
Third Geneva Convention for the United States to provide
effective penal sanctions for grave breaches which are
encompassed in common Article 3 in the context of an armed
conflict not of an international character. No foreign or
international source of law shall supply a basis for a rule of
decision in the courts of the United States in interpreting the
prohibitions enumerated in subsection (d) of such section 2441.
(3) Interpretation by the president.--
(A) As provided by the Constitution and by this
section, the President has the authority for the United
States to interpret the meaning and application of the
Geneva Conventions and to promulgate higher standards
and administrative regulations for violations of treaty
obligations which are not grave breaches of the Geneva
Conventions.
(B) <<NOTE: President. Federal Register,
publication.>> The President shall issue interpretations
described by subparagraph (A) by Executive Order
published in the Federal Register.
(C) Any Executive Order published under this
paragraph shall be authoritative (except as to grave
breaches of common Article 3) as a matter of United
States law, in the same manner as other administrative
regulations.
(D) Nothing in this section shall be construed to
affect the constitutional functions and responsibilities
of Congress and the judicial branch of the United
States.
(4) Definitions.--In this subsection:
(A) Geneva conventions.--The term ``Geneva
Conventions'' means--
(i) the Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces
in the Field, done at Geneva August 12, 1949 (6
UST 3217);
[[Page 120 STAT. 2633]]
(ii) the Convention for the Amelioration of
the Condition of the Wounded, Sick, and
Shipwrecked Members of the Armed Forces at Sea,
done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment
of Prisoners of War, done at Geneva August 12,
1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection
of Civilian Persons in Time of War, done at Geneva
August 12, 1949 (6 UST 3516).
(B) Third geneva convention.--The term ``Third
Geneva Convention'' means the international convention
referred to in subparagraph (A)(iii).
(b) Revision to War Crimes Offense Under Federal Criminal Code.--
(1) In general.--Section 2441 of title 18, United States
Code, is amended--
(A) in subsection (c), by striking paragraph (3) and
inserting the following new paragraph (3):
``(3) which constitutes a grave breach of common Article 3
(as defined in subsection (d)) when committed in the context of
and in association with an armed conflict not of an
international character; or''; and
(B) by adding at the end the following new
subsection:
``(d) Common Article 3 Violations.--
``(1) Prohibited conduct.--In subsection (c)(3), the term
`grave breach of common Article 3' means any conduct (such
conduct constituting a grave breach of common Article 3 of the
international conventions done at Geneva August 12, 1949), as
follows:
``(A) Torture.--The act of a person who commits, or
conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody
or physical control for the purpose of obtaining
information or a confession, punishment, intimidation,
coercion, or any reason based on discrimination of any
kind.
``(B) Cruel or inhuman treatment.--The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe or serious physical or
mental pain or suffering (other than pain or suffering
incidental to lawful sanctions), including serious
physical abuse, upon another within his custody or
control.
``(C) Performing biological experiments.--The act of
a person who subjects, or conspires or attempts to
subject, one or more persons within his custody or
physical control to biological experiments without a
legitimate medical or dental purpose and in so doing
endangers the body or health of such person or persons.
``(D) Murder.--The act of a person who intentionally
kills, or conspires or attempts to kill, or kills
whether intentionally or unintentionally in the course
of committing any other offense under this subsection,
one or more persons taking no active part in the
hostilities, including those placed out of combat by
sickness, wounds, detention, or any other cause.
[[Page 120 STAT. 2634]]
``(E) Mutilation or maiming.--The act of a person
who intentionally injures, or conspires or attempts to
injure, or injures whether intentionally or
unintentionally in the course of committing any other
offense under this subsection, one or more persons
taking no active part in the hostilities, including
those placed out of combat by sickness, wounds,
detention, or any other cause, by disfiguring the person
or persons by any mutilation thereof or by permanently
disabling any member, limb, or organ of his body,
without any legitimate medical or dental purpose.
``(F) Intentionally causing serious bodily injury.--
The act of a person who intentionally causes, or
conspires or attempts to cause, serious bodily injury to
one or more persons, including lawful combatants, in
violation of the law of war.
``(G) Rape.--The act of a person who forcibly or
with coercion or threat of force wrongfully invades, or
conspires or attempts to invade, the body of a person by
penetrating, however slightly, the anal or genital
opening of the victim with any part of the body of the
accused, or with any foreign object.
``(H) Sexual assault or abuse.--The act of a person
who forcibly or with coercion or threat of force
engages, or conspires or attempts to engage, in sexual
contact with one or more persons, or causes, or
conspires or attempts to cause, one or more persons to
engage in sexual contact.
``(I) Taking hostages.--The act of a person who,
having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such
person or persons with the intent of compelling any
nation, person other than the hostage, or group of
persons to act or refrain from acting as an explicit or
implicit condition for the safety or release of such
person or persons.
``(2) Definitions.--In the case of an offense under
subsection (a) by reason of subsection (c)(3)--
``(A) the term `severe mental pain or suffering'
shall be applied for purposes of paragraphs (1)(A) and
(1)(B) in accordance with the meaning given that term in
section 2340(2) of this title;
``(B) the term `serious bodily injury' shall be
applied for purposes of paragraph (1)(F) in accordance
with the meaning given that term in section 113(b)(2) of
this title;
``(C) the term `sexual contact' shall be applied for
purposes of paragraph (1)(G) in accordance with the
meaning given that term in section 2246(3) of this
title;
``(D) the term `serious physical pain or suffering'
shall be applied for purposes of paragraph (1)(B) as
meaning bodily injury that involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) a burn or physical disfigurement of a
serious nature (other than cuts, abrasions, or
bruises); or
``(iv) significant loss or impairment of the
function of a bodily member, organ, or mental
faculty; and
``(E) the term `serious mental pain or suffering'
shall be applied for purposes of paragraph (1)(B) in
accordance
[[Page 120 STAT. 2635]]
with the meaning given the term `severe mental pain or
suffering' (as defined in section 2340(2) of this
title), except that--
``(i) the term `serious' shall replace the
term `severe' where it appears; and
``(ii) as to conduct occurring after the date
of the enactment of the Military Commissions Act
of 2006, the term `serious and non-transitory
mental harm (which need not be prolonged)' shall
replace the term `prolonged mental harm' where it
appears.
``(3) Inapplicability of certain provisions with respect to
collateral damage or incident of lawful attack.--The intent
specified for the conduct stated in subparagraphs (D), (E), and
(F) or paragraph (1) precludes the applicability of those
subparagraphs to an offense under subsection (a) by reasons of
subsection (c)(3) with respect to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful
attack.
``(4) Inapplicability of taking hostages to prisoner
exchange.--Paragraph (1)(I) does not apply to an offense under
subsection (a) by reason of subsection (c)(3) in the case of a
prisoner exchange during wartime.
``(5) Definition of grave breaches.--The definitions in this
subsection are intended only to define the grave breaches of
common Article 3 and not the full scope of United States
obligations under that Article.''.
(2) Retroactive applicability.--The amendments made by this
subsection, except as specified in subsection (d)(2)(E) of
section 2441 of title 18, United States Code, shall take effect
as of November 26, 1997, as if enacted immediately after the
amendments made by section 583 of Public Law 105-118 (as amended
by section 4002(e)(7) of Public Law 107-273).
(c) Additional <<NOTE: 42 USC 2000dd-0.>> Prohibition on Cruel,
Inhuman, or Degrading Treatment or Punishment.--
(1) In general.--No individual in the custody or under the
physical control of the United States Government, regardless of
nationality or physical location, shall be subject to cruel,
inhuman, or degrading treatment or punishment.
(2) Cruel, inhuman, or degrading treatment or punishment
defined.--In this subsection, the term ``cruel, inhuman, or
degrading treatment or punishment'' means cruel, unusual, and
inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations,
Declarations and Understandings to the United Nations Convention
Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment done at New York, December 10, 1984.
(3) Compliance.--
The <<NOTE: President. Rules. Procedures.>> President shall take
action to ensure compliance with this subsection, including
through the establishment of administrative rules and
procedures.
SEC. 7. HABEAS CORPUS MATTERS.
(a) In General.--Section 2241 of title 28, United States Code, is
amended by striking both the subsection (e) added by section
[[Page 120 STAT. 2636]]
1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e)
added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat.
3477) and inserting the following new subsection (e):
``(e)(1) No court, justice, or judge shall have jurisdiction to hear
or consider an application for a writ of habeas corpus filed by or on
behalf of an alien detained by the United States who has been determined
by the United States to have been properly detained as an enemy
combatant or is awaiting such determination.
``(2) Except as provided in paragraphs (2) and (3) of section
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no
court, justice, or judge shall have jurisdiction to hear or consider any
other action against the United States or its agents relating to any
aspect of the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the United States and
has been determined by the United States to have been properly detained
as an enemy combatant or is awaiting such determination.''.
(b) Effective <<NOTE: 28 USC 2441 note.>> Date.--The amendment made
by subsection (a) shall take effect on the date of the enactment of this
Act, and shall apply to all cases, without exception, pending on or
after the date of the enactment of this Act which relate to any aspect
of the detention, transfer, treatment, trial, or conditions of detention
of an alien detained by the United States since September 11, 2001.
SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO
PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.
(a) Counsel and Investigations.--Section 1004(b) of the Detainee
Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is amended--
(1) by striking ``may provide'' and inserting ``shall
provide'';
(2) by inserting ``or investigation'' after ``criminal
prosecution''; and
(3) by inserting ``whether before United States courts or
agencies, foreign courts or agencies, or international courts or
agencies,'' after ``described in that subsection''.
(b) Protection <<NOTE: Applicability. 42 USC 2000dd-1 note.>> of
Personnel.--Section 1004 of the Detainee Treatment Act of 2005 (42
U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution
that--
(1) relates to the detention and interrogation of aliens
described in such section;
(2) is grounded in section 2441(c)(3) of title 18, United
States Code; and
(3) relates to actions occurring between September 11, 2001,
and December 30, 2005.
SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.
Section 1005(e)(3) of the Detainee Treatment Act of 2005 (title X of
Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended--
(1) in subparagraph (A), by striking ``pursuant to Military
Commission Order No. 1. dated August 31, 2005 (or any successor
military order)'' and inserting ``by a military commission under
chapter 47A of title 10, United States Code'';
(2) by striking subparagraph (B) and inserting the following
new subparagraph (B):
[[Page 120 STAT. 2637]]
``(B) Grant of review.--Review under this paragraph
shall be as of right.'';
(3) in subparagraph (C)--
(A) in clause (i)--
(i) by striking ``pursuant to the military
order'' and inserting ``by a military
commission''; and
(ii) by striking ``at Guantanamo Bay, Cuba'';
and
(B) in clause (ii), by striking ``pursuant to such
military order'' and inserting ``by the military
commission''; and
(4) in subparagraph (D)(i), by striking ``specified in the
military order'' and inserting ``specified for a military
commission''.
SEC. 10. DETENTION COVERED BY REVIEW OF DECISIONS OF COMBATANT STATUS
REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.
Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005
(title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801 note) is
amended by striking ``the Department of Defense at Guantanamo Bay,
Cuba'' and inserting ``the United States''.
Approved October 17, 2006.
LEGISLATIVE HISTORY--S. 3930 (H.R. 6054):
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HOUSE REPORTS: No. 109-664, Pt. 1 (Comm. on Armed Services) and Pt. 2
(Comm. on the Judiciary), both accompanying H.R. 6054.
CONGRESSIONAL RECORD, Vol. 152 (2006):
Sept. 27, 28, considered and passed Senate.
Sept. 29, considered and passed House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 42 (2006):
Oct. 17, Presidential remarks.
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